Frye v. Brinker ( 1935 )

Plaintiff's decedent, while crossing Woodward avenue, just north of the intersection of Margaret street in the city of Detroit, the evening of September 17, 1932, was struck by an automobile, driven by defendant Mildred S. Brinker, and owned by her husband, defendant Albert E. Brinker, who was also in the car, and received injuries, rendering him unconscious and from which he died a few hours later.

Woodward avenue runs north and south, having two paved lanes for traffic, separated by street car tracks. Mrs. Brinker was driving north in the east and proper lane for traffic in that direction, when plaintiff's decedent came from the street car tracks and into the path of the automobile. The only eyewitnesses were the defendants and plaintiff called them to testify, as he had a right to do,^* and their testimony was uncontradicted that the deceased came suddenly from the street car tracks and appeared to stumble into the path of the automobile when it was within a couple of feet from him.

Defendants being eyewitnesses of the accident the question of due care on the part of plaintiff's decedent was one of fact and not of presumption. Richardson v. Williams, 249 Mich. 350.

There was no evidence of physical facts at all contradictory to the testimony of the eyewitnesses and the jury could do no less than follow the only evidence of what occurred. That evidence negatived negligence by defendants and established, as the proximate cause of the accident, the want of reasonable care on the part of plaintiff's decedent.

The court was not in error in submitting to the jury the question of contributory negligence of plaintiff's decedent. It cannot be said that the verdict, in accord with the sole evidence in the case, was contrary to the great weight thereof.

We find no reversible error, and the judgment is affirmed, with costs against plaintiff.

POTTER, C.J., and NELSON SHARPE, NORTH, FEAD, BUTZEL, BUSHNELL, and EDWARD M. SHARPE, JJ., concurred.

^* See 3 Comp. Laws 1929, § 14220. — REPORTER.